DC256

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1857 OF 1999

BETWEEN

Netoko Eli
Complainant

V

Henry Ngia
Defendant

Port Moresby: Mr Lova S. Geita - Senior Magistrate
Dated: 27-1-2000, 10-2-2000, 16, 17-3-2000
7, 17, 25-4-2000, 3, 30-5-2000

Practice and procedure - District Courts Act (Chapter No. 40) SS 133 (1), 137. 
Cause of Action – Jurisdiction confined to what sated in summons or Complaint.

Cases Cited
The following cases are cited in this decision.
Salomon vs. Salomon & Company Ltd (1897) AC .22
Niugini Lloyds International Bank Ltd vs. Sakora [1987] PNGLR 275

REASONS FOR DECISION

Geita.- The Complainant is claiming that he was not paid his entitlements upon termination by a Mr. Henry in his complaint dated 22nd July 1999. He is claiming a total of K2,491.36.

On 18th October 1999, when the Defendant failed to answer summons which was duly served on him on 6th September 1999 at 2.30 pm judgement in default was entered against him in the sum sought in the complaint.

On 27th January 2000, the Defendant's Lawyer successfully obtained an Order to Set Aside the Ex parte Order and directed the matter be fully hence this decision.

The complaint is based on calculations made by the Labour Officers in Port Moresby to the effect that the Defendant owes the Complaint an amount of K2,491.36 as his statutory legal entitlements. They include Kl20.00 for unpaid annual leave; K30.00 for wages in lieu of termination, K2,530 for unpaid over time whilst been a employee of Marks Supermarket.

The Complaint just says that he was employed by Marks Supermarket as a shopkeeper from 181 February 1998 - 16th Apri1 1999.

The Defendant however is saying that the complaint should be dismissed as it does not have a cause of action. This Court thinks otherwise. The complaint is good for all purposes. The defendant was properly served.

Secondly, they say that the Defendant does not have any contractual relationship with him and should not be made liable for his brothers dealings. Defendant has pleaded privity of contract. Defendant says that his brother Richard Ngia died interstate and so all his assets are administered by the Public Curator of Port Moresby. The Complainant, if he wants too may make claim to that office. Furthermore, the Defendant is saying that he is not liable to be sued. As a result he ask that the complaint be dismissed.

Firstly, there is no written contract between the complainant and Marks Supermarket, the former employer. It is not disputed that he was employed by Marks Supermarket. However it is disputed that the Defendant did not employ him therefore the Defendant should not be held liable for any debts. The Complainant in his affidavit makes references to the Defendant holding a very import ant position with Marks Super Market however he has not shown to Court any papers to verify that claim.

I am mindful of the fact that the Complainant is not assisted by a Lawyer and the implications of what he is saying are varied. I have given him that benefit. His statement has been given every possible interpretation to give weight to what he is trying to tell court. However we are here talking about a supposed debt and who is to be made liable. It is therefore .in the complainant's interest to show to the Court that the Defendant t must be also be held liable as he was a party to that Company. In the absence of that evidence, it would in my opinion be very unsafe to make a finding in the Complaint’s favour.

Under the law Marks Supermarket when duly incorporated is in the eyes of the law a legal person or a legal entity distinct from its members and officers. In the words of Lord Macneghter in the leading case of Salomon Vs. Salomon Company Ltd (1897) A.C.22.

"The Company is a different person altogether from the subscribers to the memorandum, and, though it may be that after incorporation the business is precisely the' same as it was before, and the same persons are managers, and the same hands receives the profits the company is not in law the agent of the subscribers or trustees for them".

In the case before me the Complaint has not named Marks Supermarket or Mr Richard Ngia as defendants. Instead he has name the Defendant by first name only in his complaint. The complaint could have easily been struck out at the onset on a technicality. However the Complainant as unrepresented this Court has allowed it to go and remain as it is.

Furthermore, it is true that upon the death or retirement of a member; the company remains unaltered. Unless the Company is wound up or the Registrar exercises his discretion under S.319 of the Companies Act and strikes the Company's name off the register of Companies, the Company will go on for ever. This is called perpetual succession.

In this case the Complainant is alleging that the Defendant who was the Assistant Managing Director of the Company should be held liable. What the Complainant has failed to do is to link the Defendant to Marks Supermarket and to prove that the defendant was a Manger/Director at the time. As it is only the Defendants late brother was named and said to be the one who employed the Complainant. Under the circumstances I consider it very unsafe to find for the Complaint with incomplete and inconsistent evidence.

I agree with the Dependant that if there was an agreement/contract for the Complainant to be employed, it was not made by the Defendant. As such by virtue of privity of contract the Complainant cannot in law sue the Defendant, simply because the Defendant was not a party to that agreement.

An observation made by Court is that the Complainant has named the Defendant in his original complaint. No amendments have been made to date to include either the Company, Marks Supermarket or his fanner boss, Mr Richard Ngia as Dependants in this case. They cannot be drawn in at this late stage of hearing as parties.

I might add here that District Courts are creatures of statute and our powers arc derived from those statutes. Our jurisdiction is confined to what is stated in the Summons or Complaint. This is specifically mentioned in ss 133 (1), 137 of the District Court Act Chapter No. 40. I quote S 137 of

"Evidence of a demand or cause of action shall not be given on behalf of the Complainant on the hearing of a complaint other than a demand or cause of action stated in the summons issued on the complaint, or in the summons as amended."

Furthermore, our powers are given to us by the complaints that are before us, however bad they may be drafted. We can only work within those parameters. Having to go outside the parameters of what is stated in those complaints is want of jurisdiction. Because of what I have stated above it is clear that the Complainant has brought the wrong Defendant to Court.

In the case of Niugini Lloyds International Bank Ltd Vs. Sakora PNGLR [1987] 275 it was held that where a plaintiff has proceeded on an incorrect cause of action in the District Court where the powers of the Court are confined by the provisions of 8.133 (1), and 8.137 of the District Court Act Chapter No. 40 to the because of action stated in the summons" The National Court has no power to amend those proceedings on appeal

The complaint is therefore defective and Jacks sufficient evidence.

The end result is that the complaint is dismissed and the Defendant discharged.

COURT ORDER

1. Complaint is dismissed
2. Defendant is discharged
3. Costs of the Defendant to be paid by the Complainant

In Person: Complainant
Francis Mugugia: Defendant